Trust and probate litigation can take a variety of forms. A classic example of such litigation would be a will contest or a contest of a revocable trust in which the validity of the will or trust is challenged, usually on grounds that the decedent lacked testamentary capacity or that the will or trust was the product of undue influence. Another example might be a dispute between the beneficiaries and the trustee of an irrevocable trust over the administration of the trust. A more common example in recent years may be a dispute arising from the failure of the successor trustee of a revocable trust to distribute the trust assets to the beneficiaries after the death of the trust’s creator.
Like other forms of litigation, trust and probate litigation is long and expensive. It will likely cost each side at least $50,000 to $100,000 in legal fees to take a case through trial, and the entire process will usually take 12-18 months. Most cases settle before trial. But even if the case is settled before it gets to trial, it will probably take many months and tens of thousands of dollars before it is resolved.
In addition to the time and expense involved, litigation can also be emotionally difficult for the parties. Probate and trust litigation can be especially draining because the litigants are usually family members. The lawsuit can thus tear families apart and consume lives.
Why Does It Take So Long and Cost So Much?
Clients often ask: Why can’t we just appear before the judge, explain our case, and have him or her rule in our favor? The answer is that our legal system is designed to prevent a rush to judgment. It permits each side to be fully heard through an orderly presentation of all of the relevant facts. The judge will not rule on the merits of the case until both sides have had an opportunity to obtain all of the pertinent information to support their case, and that information is available only through a lengthy fact discovery process consisting of depositions, interrogatories, requests for admissions, requests for production of documents, and subpoenas to third parties. And so it may seem that the legal system favors the “bad” person on the other side, but it is really just trying to be as even-handed as possible.
How Does the Process Work?
As with other forms of litigation, the lawsuit may begin with the filing of a Complaint. In the probate or trust context, the initial pleading may, alternatively, be a Petition that is filed in probate court. The Petition might or might not set up an adversarial situation. For example, on the one hand, it might seek to have the trustee of a revocable trust removed from office on grounds that he has breached his fiduciary duty. That would be adversarial. On the other hand, the Petition might simply ask the Court to approve a particular transaction or other act by the trustee to which the beneficiaries might consent. It might even just be an Application to open probate.
Once the Complaint has been filed and served on the defendant, the defendant in most cases has 20 days to file an Answer (or 30 days for a defendant who resides outside the State of Utah). If the initial pleading is a non-adversarial Petition or Application, the stage will not be set for an adversarial proceeding unless and until an interested person files an Objection. If an Objection is filed in a probate or trust proceeding, the probate judge will typically refer the case over to the civil litigation calendar. From that point forward, the case will proceed in the same manner as any other civil litigation case.
Once the Answer (or Objection) has been filed, the clock starts ticking on the discovery process. In Utah, if less than $50,000 is at issue, discovery (i.e. depositions, interrogatories, requests for admissions, requests for production of documents, and subpoenas to third parties) must be completed within 120 days (4 months). If the case involves $50,000 to $300,000, discovery must be completed within 180 days (6 months). If more than $300,000 is at issue, discovery must be completed within 210 days (7 months).
One reason litigation is so expensive is that, throughout the discovery period, there are likely to be many procedural motions. Some of these motions may relate to discovery disputes over what material must be turned over to the other side. Other motions may pertain to who should or should not be parties to the lawsuit, or to what court should hear the case, or to attempts by parties to dismiss some or all of the claims in the case, as well as a variety of other matters.
Additional delays are also possible. For example, if the attorney for one side withdraws, the other side will file a Notice to Appear or Appoint Counsel, after which all action in the case is stayed for 20 days.
When the discovery process is completed, the parties will file a Certificate of Readiness for Trial. The court will then schedule trial three to six months in the future. And even the trial is not the end of the litigation road. After the trial is completed, the losing party has 30 days to appeal the judgment.
The foregoing assumes that the plaintiff did not seek immediate temporary relief in the form of a Temporary Restraining Order or a Preliminary Injunction when the lawsuit was commenced. If injunctive relief was sought, over $10,000 may have been spent before the Complaint was even drafted.
Are There Any Short-Cuts?
It is possible to ask the court to decide the case before it ever gets to trial. One method would be to file a Motion for Summary Judgment. Such motions are seldom granted, however. In order to prevail on a Motion for Summary Judgment, the moving party must show that there is no dispute of a material fact and that he or she is entitled to a judgment as a matter of law. If the Motion for Summary Judgment is brought too early, the other side may argue that more discovery must be conducted before the court can rule on the motion.
Another method for resolving the case early is a Motion to Dismiss. This could be brought by the defendant if the Complaint fails to cite a claim for relief, or if the plaintiff is not prosecuting the suit. Conversely, if the defendant is not defending the suit, the plaintiff may enter a Notice of Default.
Of course, even a Motion for Summary Judgment can involve a lengthy process. After the Motion is filed, the other party has 14 days to file its Opposition, after which the moving party has seven days to file its Reply. Extensions of these time periods are routinely requested and granted. Once the Reply is filed, the moving party will file a Request to Submit for Decision. Because the motion is dispositive of the case, the court will usually set a date for hearing at which both sides can present their arguments. And even a Notice of Default may be followed by a “prove-up” hearing at which a party must present evidence to support the claims he or she has brought or to support damages sought.
Is There Another Way?
The litigation can be abbreviated if the parties settle the case before trial. A formal mediation is not required to settle a case, but it can facilitate a settlement. (For more information about probate and trust mediations, go to www.utahprobatemediation.com.) Mediation is generally voluntary, however in Salt Lake County the probate judge will usually refer the parties to mandatory mediation when an Objection is made in a trust or probate case.
While mediation may be very helpful in avoiding trial, it will not necessarily shorten the litigation process by very much because mediation is most useful after the discovery process has been completed, when each side has a better sense of the weaknesses in its own case.
On balance, a great deal of expense and emotional anxiety can be avoided if the parties can come to agreement before the litigation is commenced. A demand letter from the aggrieved party to the other party may serve to open a dialogue that permits resolution before a Complaint gets filed. For example, if a trustee refuses to perform his or her responsibilities, a letter from the beneficiary to the trustee describing those responsibilities, the trustee’s failure to meet those responsibilities and the consequences of continued failure, may wake the trustee up and provoke compliance. If not, litigation may be the only recourse.
For a discussion of estate planning, revocable trusts and probate in Utah, see “Basic Estate Planning Information” on the home page of this website. For a discussion of trustee responsibilities in Utah, see “Serving as Trustee” on the home page of this website.
Rust Tippett is the author of this blog post.
Copyright 2015 UNLEPI, LLC, a Utah limited liability company. All Rights Reserved.
This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, LLC. The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.